SIVANI Vs. MADHAVADI NADAR

JUDGEMENT

(1.) THE Rajah of Ramnad obtained a decree against one of his ryots for arrears of rent in 1921. Various payments were said to have been made from time to time, but finally, in 1934, execution proceedings were taken out. THE Collector fixed the terms of the proclamation and the date for sale, and appointed an Amin as the selling officer, instructing him to proclaim the sale in the village. THE property was in due course brought to sale; and respondent 1, who was the successful auction purchaser, entered into possession. Many years later, in 1940, the daughters, who are the appellants here, brought the present suit for partition, alleging that their shares were not legally sold. THE first Court held in the appellants favour, finding that respondent 1 had not proved that the estate acted in good faith in issuing notice only to the sons and ignoring the daughters. THE lower appellate Court held that the estate had acted in good faith and that therefore respondent 1 had obtained title to the whole of the land. I agree with the lower appellate Court that there is no reason to doubt the good faith of the estate in issuing notice only to the sons. If the parties had been Hindus, instead of Christians, they would have been the heirs to their father's property or, if it had been joint family property, they would have obtained it by survivorship. I have no doubt that the estate gave notice to the sons because they believed that the sons were entitled to represent their father's estate; and in doing so, they undoubtedly acted in perfect good faith. It is conceded that if parties are impleaded in execution in the belief that they represent the estate, the proceedings are ordinarily binding on all those interested in the estate; but it is argued that this would not be so if the proceedings were under the Madras Estates Land Act. Section 112, it is said, is imperative; and notice must go to the defaulter. If the person in whose name the land is registered be dead, the defaulters would be his legal representatives and there would be no room for the application of those equitable principles invoked in the execution of civil Court decrees. THE principle in question must however be of universal application, or the gravest injustice might be done to the most diligent of decree-holders. However, even if such a contention be taken seriously, it is clear that Section 112 of the Act is primarily intended to apply to cases where the landholder brings the land to sale without the intervention of the Court through the Collector. As Secs.113 to 115 obviously could have no application to a sale in execution of a decree, it is reasonable to suppose that the sections in this chapter that can be applied to execution in accordance with the provisions of Section 132 of the Act would begin not earlier than Section 116. If so, then nothing is said in these sections (or indeed in Section 112 for that matter) with regard to the adding of legal representatives; and as the procedure laid down in the Civil P. C. is to apply where it is not contrary to the provisions of the Act, this equitable principle could be invoked.

(2.) IT is next argued that good faith is not enough if the sons did not in fact properly represent the estate in which their sisters had a share. IT is pointed out that; they remained ex parte in the execution proceedings and did not challenge the proceedings in a suit on the ground that illegalities had been committed in the execution sale. The illegalities said to have been committed are connected with the failure of the Collector to appoint an officer to conduct the sale until he himself had fixed a date for terms of proclamation. This would doubtless have afforded a ground for setting aside the sale if the sons had filed a suit for setting it aside within one year; and it is argued that as the sons did not do this, they cannot be said to have properly represented their sisters interests. Their sisters interest was not, however, higher than their own; and there was no reason why they should have filed a suit to set aside the sale. If they had done so and the sale had been set aside, it would have been re-held with much the same result. I am not prepared to say that the sons acted negligently in not having brought a suit to set aside the sale. I agree with the lower appellate Court that the sale is binding on the daughters and that the suit was properly dismissed. The appeal is dismissed with the costs of respondent 1.